INS v. AP
Citation International News Service v. Associated Press, 248 U.S. 215 (1918) (full-text). Factual Background This case involved two wire services, the Associated Press (“AP”) and International News Service (“INS”), that transmitted news stories by wire to member newspapers. INS, apparently barred by British military censors from sending cables to the United States regarding World War I, read "hot" news stories in East coast newspapers that subscribed to the AP. The INS then telegraphed rewritten versions of those stories to its own subscribers on the West coast. AP argued that such conduct violated its property right in the news material. INS asserted that any such property right was forfeited once the news was published, and that its review of the AP publications, regardless of its intent, was permissible. U.S. Supreme Court Proceedings Recognizing that there is no inherent property right in news, the U.S. Supreme Court nonetheless found that, with respect to its competitors, AP had a "quasi-property right" in the quick and accurate compilation and dissemination of such news. The U.S. Supreme Court held that INS’s conduct was a common-law misappropriation of AP’s property. The Court was influenced by the fact that INS and the AP were direct competitors. Indeed, the Court intimates that had INS been a member of the general public redistributing the AP's news it might not have been liable for misappropriation — "to transmit news for commercial use, in competition with complainant . . . is a very different matter the right of a purchaser to disseminate the information in the newspaper it has bought."Id. at 239. This case established the “hot news” misappropriation doctrine, under which someone who takes uncopyrighted (and uncopyrightable) facts could be enjoined under a misappropriation theory. Based on legislative history of the 1976 Copyright Act, it is generally agreed that a “hot-news” INS-like claim survives preemption.H.R. Rep. No. 1476, 94th Cong., 2d Sess. 55 (1976), at 132 (1976). Discussion Although the INS decision was based on no-longer extant federal common law,See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938) (full-text). it has been relied on over the years by various state courts in fashioning relief for similar conduct.See generally Douglas G. Baird, Common Law Intellectual Property and the Legacy of International News Serv. v. Associated Press, 50 U. Chi. L. Rev. 411 (1983). INS was cited by the Supreme Court several times in the 1980s and 1990s, including in Feist v. Rural Telephone.Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 354 (1991) (full-text) (stating that legal protection for facts “may in certain circumstances be available under theory of unfair competition”); Carpenter v. United States, 484 U.S. 19, 26 (1987) (full-text); San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522, 532 (1987) (full-text). Congress also referred to it in fashioning the preemption provision of the 1976 Copyright Act.17 U.S.C. §301. See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 132 (1976); S. Rep. No. 473, 94th Cong., 2d Sess. 116 (1976). The reference reads in full: The doctrine remained, however, somewhat ill-defined and uncertain in scope, as different courts applied it in different circumstances, sometimes without refined analysis.''See, e.g., Metropolitan Opera Ass'n, Inc. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483 (Sup. Ct. 1950)(full-text), aff’d, 279 A.D. 63, 107 N.Y.S.2d 795 (1951) (full-text). This doctrine, while confirmed, was substantially restricted by the Second Circuit Court of Appeals in National Basketball Ass’n v. Motorola, Inc. 105 F.3d 841, 41 U.S.P.Q.2d (BNA) 1585 (2d Cir. 1997) (full-text). References Category:Case Category:Case-U.S.-Federal Category:Case-U.S.-Misappropriation Category:Misappropriation Category:1918